State v. Lizarraga
| Decision Date | 07 December 2015 |
| Docket Number | No. 71532–1–I.,71532–1–I. |
| Citation | 364 P.3d 810,191 Wash.App. 530 |
| Parties | STATE of Washington, Respondent, v. Jorge Luis LIZARRAGA, Appellant. |
| Court | Washington Court of Appeals |
Lila Jane Silverstein, Washington Appellate Project, Seattle, WA, for Appellant.
Prosecuting Atty. King County, King Co. Pros./App. Unit Supervisor, Dennis John Mccurdy, King County Prosecutor's Office, Seattle, WA, for Respondent.
¶ 1 Following a six-week trial, the jury convicted Jorge Luis Lizarraga of murder in the second degree of 18–year–old Devin Topps, two counts of unlawful possession of a firearm, residential burglary, theft of a firearm, and possession of a stolen firearm. Lizarraga seeks reversal of the murder conviction arguing that the exclusion of inadmissible hearsay evidence violated his constitutional right to present a defense and his right to a unanimous jury verdict. Lizarraga also seeks reversal of the convictions arguing the court erred in denying his motion for a Frye1 hearing and admitting fingerprint and ballistics evidence, and using 11 Washington Practice: Washington Pattern Jury Instructions: Criminal 4.01, at 85 (3d ed.2008), to instruct the jury on the meaning of "reasonable doubt." We reject Lizarraga's arguments, and affirm.
¶ 2 On October 27, 2010, Federal Way Police Officer Andrew Hensing responded to the report of a burglary at the home of Washington State Patrol Trooper Jason Keays. Officer Hensing found a lawn chair propped "up against the window on the exterior of the home" and "[t]he window ... ajar." Trooper Keays said a number of items were missing including a laptop, coins from a coin jar, and his gun safe. Trooper Keays kept an "old service weapon"—a Heckler & Koch .40 caliber semiautomatic handgun with a "15–round capacity" in the gun safe. The bullets in the magazine of the Heckler & Koch were stamped "law enforcement."
¶ 3 Fingerprint technician Tamara Armatis obtained fingerprints from the window, a sliding glass door, some objects inside the home, and a fingerprint and palm print from the lawn chair.
¶ 4 On October 30, 2010, Kentridge High School senior Jose Gomez invited friends to a Halloween party in the garage of his parents' house. Approximately 40 to 50 people attended the party including recent Kentridge High School graduate Devin Topps and his friends Antonio Brown, Leon Howard, and Austin Daniels.
¶ 5 Topps and his friends arrived at the party at approximately 11:00 p.m. Topps had received a scholarship from Eastern Washington University and planned to play football beginning winter quarter. Topps wore an old football uniform as his costume. Topps and his friends spent several hours at the party in the garage talking to friends and dancing.
¶ 6 Marlit Vela and her friend Vanessa Quiroz arrived at the party around midnight. Vela and Quiroz were not Kentridge students and "didn't know anybody" at the party. But their friends Hugo Vaca–Valencia, Israel Guzman, and David Gonzalez arrived a bit later with Jorge Luis Lizarraga.2 When Vaca–Valencia, Guzman, David Gonzalez, and Lizarraga arrived, Vela and Quiroz went outside to join them. Vela knew Guzman and had met Vaca–Valencia and David Gonzalez several times. Vela had seen Lizarraga "a few times before" at other parties but met him for the first time that night. The group stood in a circle at the end of the driveway "so we could just talk."
¶ 7 At approximately 2:00 a.m., Topps and his friends decided to leave the party. As he was leaving, Topps stopped to talk to Emily Dugan. Topps agreed to walk Dugan to her car to get her cell phone and escort her back to the party. As Topps and Dugan walked past the group at the end of the driveway, someone told Topps he looked "ridiculous" in his football costume. Topps "just brushed it off and kept walking" to Dugan's car.
¶ 8 Vela said that as Topps walked past the group at the end of the driveway on his way back to the garage, someone made another comment about his costume and Topps "got mad." Vela testified Topps "turned around and went out to the street and started saying, let's do this, let's fight." Vela said she was standing between Topps and Vaca–Valencia and tried "to hold [Vaca–Valencia] back," but Topps and Vaca–Valencia began "wrestling." Vela testified that "a minute or so" later when Topps was "sort of on top of [Vaca–Valencia]," Lizarraga pulled out a gun, shot "up in the air three times," then "walked towards where [Topps] was and just shot him ... in the back." Vela testified that after shooting Topps, Lizarraga "went out back to the street and shot up two more times in the air."
¶ 9 Kent Police Officer Ken Clay arrived at approximately 2:10 a.m. Officer Clay and the paramedics attempted to resuscitate Topps but were unsuccessful.
¶ 10 Kent Police Officer Doug Whitley found nine .40 caliber shell casings and one unfired .40 caliber bullet on the ground at the end of the driveway. Officer Clay also found a front car bumper with a license plate. Someone in the crowd told Officer Clay the bumper "might be the shooter's bumper from their car." The license plate was for a 1997 black Honda Civic Coupe. The registered owner told the police that she sold the car to her brother David Gonzalez several months earlier.
¶ 11 Kent Police Officer Amanda Quinonez talked to Topps's friends Daniels and Howard immediately after the shooting. Daniels was "highly escalated" but was able to give a description of the shooter. Daniels described the shooter as "a Mexican male between the ages of 18 to 20 years old," five feet nine to ten inches tall, with "a tattoo or a scar, some kind of mark on his face," and "either a mustache or a goatee or some kind of facial hair, not a full beard." Daniels said the shooter was wearing a long white t-shirt and jeans and maybe wore earrings.
¶ 12 Based on Daniel's description, at 2:33 a.m. on October 31, Kent Police Officer Ian Warmington detained a person later identified as Samuel Lizarraga. Daniels and Howard told police Samuel was not the shooter but "he may have been involved in part of the argument that led up to [the shooting]."
¶ 13 Samuel Lizarraga agreed to talk to the officers at the police station. Samuel was at the police station from 2:38 a.m. to 4:12 a.m. Samuel agreed to give a taped statement.
¶ 14 Samuel told police he went to the Halloween party with his girlfriend Elizabeth Contreras and his sister Carmen Lizarraga.3 Samuel said he saw his cousin Jorge Lizarraga at the party but did not talk to him. Samuel said he knew David Gonzalez and thought he saw his black Honda parked near the location of the party that night.
¶ 15 Police detectives interviewed Carmen Lizarraga. Carmen told police she went to the Halloween party with her brother and his girlfriend. Carmen denied seeing her cousin Jorge Lizarraga at the party. Carmen said she was inside the garage with Samuel when the gunshots were fired.
¶ 16 Samuel and Carmen consented to a search of their cell phones. Lizarraga sent Carmen and Samuel several text messages the afternoon of October 30 about the location of different parties. One text message states, "Ima be with David." Just after midnight on October 31, Carmen sent a text to Lizarraga about the location of the Halloween party at Jose Gomez's house.
¶ 17 After the shooting, Lizarraga called Samuel on his cell phone four times: at 2:15 a.m., 2:16 a.m., 2:17 a.m., and 2:19 a.m. Samuel answered the call at 2:19 a.m. and spoke to Lizarraga for 41 seconds. While Samuel was at the police station, Lizarraga called Samuel ten times, and at 2:50 a.m., Lizarraga sent a text message to Samuel. The text message states, 4
¶ 18 When confronted with the cell phone messages, Carmen admitted she saw Lizarraga that night at the Halloween party. Carmen also told Kent Police Detective Gerald Gee that she believed Vela and Quiroz were outside when the shooting occurred.
¶ 19 On November 4, Detective Gee and Detective Tim Ford interviewed Vela. Vela identified Jorge Lizarraga from a photomontage as the person who shot Topps.
¶ 20 The medical examiner determined Topps died of a single gunshot wound
to the back. The bullet fractured two ribs, pierced his lung, and exited through his chest. Because the gun was "right up against [Topps's] back" and in close "contact with the skin," the gas from the gun barrel burned "an imprint of the muzzle of the gun" on Topps's back.
¶ 21 On December 14, Detective Gee received a phone call from United States Homeland Security Agent J. Bianche. Agent Bianche told Detective Gee that Jonathan Cervantes was in custody for assault and had information about the murder of Topps. Agent Bianche said Cervantes would talk to the detectives but only if "he was assured that something could be done about his current charge." Detective Gee and Detective Ford met with Cervantes the following day at the King County jail. Cervantes told the detectives he was at the Halloween party and saw who "did the shooting" but "refused to provide any details about the incident unless [the detectives] were able to work out a deal on his assault 2 case."
¶ 22 On December 17, Detective Gee, a King County deputy prosecutor, and Agent Bianche met with Cervantes. The prosecutor told Cervantes the State could not "make any promises" about his pending assault charge. "Although we were unable to make any promises to him, [Cervantes] agreed to speak to us." Cervantes said he went to the Halloween party with Vaca–Valencia, David Gonzalez, and Richardo Covarrubias Gonzalez, and he saw Vela and Quiroz at the party. Cervantes said he did not know Jorge Lizarraga.
¶ 23 According to Cervantes, Vaca–Valencia and Topps were fighting when Vaca–Valencia "pulled out a semi-automatic gun and shot [Topps]." Cervantes said he did not know whether Topps was on top of or...
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